No authorisation required for hyperlinks to copyright works, CJEU says

The owner of a website does not require authorisation of the copyright holder to link to freely accessible copyright works on another site, even if Internet users get the impression that the work is appearing on the site that contains the link, the Court of Justice of the European Union (CJEU) said Thursday.

The CJEU provided advice to the Court of Appeal in Svea, Sweden, in a case pitting Swedish journalists against Retriever Sverige, a media monitor and aggregation company that provides access to information from newspapers, magazines, radio, TV, Internet and social media.

Retriever provided its customers with hyperlinks to articles written by the journalists that were published and freely accessible on the website of the Göteborgs-Posten. Retriever did not however ask the journalists for permission to link to the articles. Retriever presented the linked articles in such a way that gave the impression that they appeared on Retrievers site.

The plaintiffs wanted to be compensated for the hyperlinks placed by Retriever because, they alleged, the defendant infringed on copyrights by linking to the articles without paying the copyright holder.

The Svea Court of Appeal asked the CJEU to ascertain whether the provision of such links constitutes an act of communication to the public within the meaning of E.U. law, the court said in a news release.

If it were an act of communication to the public, the establishment of hyperlinks would not be possible without the authorisation of the copyright holders, because E.U. law provides that authors have the exclusive right to authorize or prohibit any communication to the public of their works, the court said.

The CJEU however decided in this case that while providing links to protected works constitutes an act of communication, that in order to violate the law the communication must be directed at a new public, according to the release. By a new public the court means a public that was not taken into account by the copyright holders at the time the initial communication was authorized, it added.

However, in this case there is no such new public, the court said.

"As the works offered on the site of the Göteborgs-Posten were freely accessible, the users of Retriever Sverige's site must be deemed to be part of the public already taken into account by the journalists at the time the publication of the articles on the Göteborgs-Posten was authorized," the court said. That finding is not called into question by the fact that the Internet users who click on the link have the impression that the work is appearing on Retriever Sverige's site, whereas in fact it comes from the Göteborgs-Posten, it added.

"The Court concludes from this that the owner of a website, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site," it said.

The position would be different though in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears, the court added. In that situation the users would not have been taken into account as potential public by the copyright holders when they authorized the initial communication, it said.

Member states do not have the right to give wider protection to copyright holders by broadening the concept of communication to the public, the court said. This would have the effect of creating legislative differences and, accordingly, legal uncertainty, when the directive at issue is specifically intended to remedy those problems, it said.

It is now up to the Svea Court of Appeal to dispose of the case in accordance with CJEU's decision. The decision is similarly binding on other national courts or tribunals before which a similar issue is raised.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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